Dunman v. Raney
176 S.W. 339
Ark.
1915
Check Treatment
Wood, J.,

(after stating the facts). (1) The appellee testified in part as follows: ‘ ‘ The second visit Doctor Parks made Doctor Dunman dressed the leg and put new bandages on it. There was nothing said at that time about my leg being out of place. My leg got dislocated about the 1st of April.” The appellant moved to strike out the witness’s evidence as to the dislocation for the reason that it was a. matter for expert testimony.

The court did not err in refusing to strike the witness ’s evidence as to the dislocation. This was not exclusively a matter of expert or scientific knowledge. The appellee was competent to testify as to whether his limb was dislocated and out of shape after the same had been set. Ordinary observation would discover whether a limb that had been properly set had been dislocated, especially where such dislocation was so marked as to cause the foot to be twisted, and the limb ¡to be in an ¡abnormal position. Moreover, the appellee, who was enduring the pain and experiencing the ill effects from the broken limb, was certainly competent to testify that the leg, after being set, had become dislocated.

(2) In its first instruction, given at appellee’s instance, the 'Court told the jury in part as follows: ‘ ‘ That if the defendant failed to use reasonable ¡care and diligence “either in the diagnosis, treatment or the giving of instructions to the plaintiff or his ¡attendants, and that such failure resulted in the injuries to plaintiff’s leg, or any of them, of which he complains, without the fault of the plaintiff, it will be your duty to find for the plaintiff, ¡and to assess this damages ¡at such sum as in your opinion, taking into consideration 'all the evidence in the case, will justly, fairly and reasonably compensate him, for such injury or injuries. ’ ’ •

Appellant made a general objection to the instruction, iand he contends here that the same was erroneous because it authorized the jury to consider damages other than alleged in the complaint, and was therefor e abstract, and for the reason also that it was erroneous in the statement of the measure of damages. The appellant’s contention is not correct. The injuries of which “ appellee complained” were that ‘ ‘the defendant, after setting said leg, so negligently, carelessly and unskillfully treated and cared for said leg that the same could not heal, but became inflamed and diseased to an unnecessary extent; the bones thereof to slip, override and overlap and the ends thereof to become dead so that the flesh can not adhere thereto, and said leg to become twisted, shortened 'and so deformed and diseased as to necessitate its amputation. ’ ’

When the imtruotion is taken in connection with the allegations of the complaint, it could not have misled the jury, and it was not abstract so far as furnishing the jury a guide by which to determine whether or not the injuries of Which appellee complained, or any of them, were caused through 'appellant’s negligence. The instruction was no broader than the 'allegations of the complaint, tand the evidence on behalf of appellee which went to the jury without objection, -warranted the instruction. It permitted the jury to find only for those injuries which appellee complained resulted from -appellant’s negligence. It was the duity of appellant, if he conceived that ithe -instruction’ permitted recovery for injuries hot set up in the complaint, to call the court’s attention to same by a specific request. St. Louis, I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; Aluminum Co. v. Ramsey, 89 Ark. 522.

The contention that the instruction is erroneous because it does not correctly define the elements constituting the measure of damages would be well taken if it were the only instruction on that subject.' In Dorris v. Warford, 124 Ky. 768, the court held that “the correct measure of damages' for injuries 'caused by careless and unskillful treatment by a physician is reasonable compensation for the bodily pain land mental suffering, if any, endured by the patient, and the impairment of the plaintiff’s .ability to earn money,” land that an instruction which in effect told the jury to find such damages as they believed f roin the evidence the patient had suffered by reason of the negligent treatment was erroneous. But the instruction under review must be taken in connection with the other instruction which'immediately followed it on that subject; and the two together declared the law as to the measure of damages in .accord with the doctrine announced by the Supreme Court of Kentucky in the above Case, and which is 'also the doctrine of our own court.

(3) Appellant does not contend that the instruction was erroneous in other respects, ¡and it was not. A physician or surgeon is not required to exercise the highest skill possible. He is only bound to possess and to exercise that degree of skill and'learning ordinarily possessed and exercised by members of his profession in good standing, practicing in the same line, .and in the same general neighborhood or in similar localities. He must use reasonable oare in the exercise of ihis skill and learning, and not 'according to his best judgment in the treatment of his patients. 30 Cyc. 1570 “B,” and cases in note; Dorris v. Warford, 124 Ky. 768, 14 Am. & Eng. Ann. Cas. 602, and note.

(4) In the second instruction the court told the jury as follows: “In assessing damages, you may take into consideration his loss of time, if any, resulting from defendant’s negligence, his loss of earning power, if any, •the bodily pain land suffering which he has been compelled to endure, and mental languish, if any, which have resulted from such negligence, land iany future suffering or inconvenience which he must suffer by reason of such negligence, if 'any.”

In the. first instruction the court 'did not undertake to define the elements constituting the measure of damages, 'but told ¡the . jury that the 'appellee would be entitled to such damages as they found ¡from a consideration of all the evidence would fairly and reasonably compensate him for his injuries, and in the second instruction the court correctly defined the elements which constituted the measure of appellee’s damages. They supplemented each other, and, taken together, are a complete and accurate statement of the law. Satterwhite v. State, 82 Ark. 64.

(5) In the third instruction the court, after telling the jury that the appellant had the burden of proving contributory negligence, further told the jury that “the plaintiff could not be held to have been guilty of contributory negligence in the absence of instructions which it was defendant’s duty to give.” Appellant urges that the instruction assumes that appellant “was not only under a dirty to give instructions, but that he negligently failed to give instructions to the plaintiff. ’ ’ The instruction is not subject to the ¡criticism which the learned counsel of appellant makes. The instruction, fairly construed, does not assume that it was the duty of the appellant to give instructions, or that he negligently failed to give instructions. This was still an issue for the determination of the jury.

Tihe court, ¡ait the instance of the appellant, gave instructions which clearly told 'the jury that if .appellee’s condition was the result of his own negligence in failing to take proper .care of himself by attempting to treat the injury himself, that their verdict should he for the appellant.

When the instructions on the subject of contributory negligence are considered together, they are not in conflict and the jury had the proper guide in the consideration of that issue.

The court ¡did not err in refusing appellant’s prayers for instructions numbered 3 * land 5 † . These instructions, us we view the evidence, were ¡abstract. The idea contained in these instructions was sufficiently covered by the instruction which the ¡court gave on contributory negligence at the instance of the appellant.

While we may differ with the jury as to the correctness of their finding on the issues of negligence .and contributory negligence, we recognize that it was their province to determine these issues where there is a conflict of testimony. There is such conflict here, and therefore these issues were for the jury, ¡and there was evidence to sustain their verdict. The judgment is therefore affirmed.

Notes

*

3. If you find from the evidence that the plaintiff removed the splints .and bandages placed thereon ¡by the defendant, or removed the splints and bandages without the consent of the defendant, and that the notion of the plaintiff in so removing the splints and bandages, or either of them, if he did remove them, contributed to his condition, you are instructed that plaintiff can not recover.

†

5. ’ You are instructed that it is the duty of a patient to. follow the Instructions .and advice of the physician employed by him, and if you believe from the evidence that the plaintiff did not follow the defendant’s advice, and this failure contributed to his condition, plaintiff can not recover. (Reporter.)